Employers Warned Not to Use Drug Tests to Deter Injury Reporting

The U.S. Occupational Safety and Health Administration could cite employers who use post-incident drug testing policies to retaliate against employees reporting injuries and illnesses under the agency’s electronic record-keeping rule, according to an agency official.OSHA’s Improve Tracking of Workplace Injuries and Illnesses rule does not ban employee incentive programs or drug testing of employees, but it does prohibit employers from using drug testing or the threat of it as a form of adverse action against employees who report injuries or illnesses, according to the final rule, published in May. The rule takes full effect Jan. 1, 2017, but its anti-retaliation provisions, which establish a new, citation-based pathway for employee complaints, go into effect on Aug. 10. “It does not ban specific programs,” Amanda Edens, deputy director, OSHA’s Directorate of Standards and Guidance, told members of the National Advisory Committee on Occupational Safety & Health in Washington, on Wednesday. But if employers are using post-incident drug testing policies as a “distinct pre-text for retaliating” against employees reporting injuries and illnesses, those are the types of situations the agency would “take a careful look at in terms of whether or not we would issue a citation, but in general we are not banning drug testing programs.”Stakeholders objecting to the rule have speculated that the agency will attempt to cite employers who mandate post-accident drug testing without a compelling reason, such as a federal or state law or regulation that requires such testing.